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Fundamental Rights of Property

A citizen's right to own private property is a fundamental human right. The state cannot take possession of it without following due procedure and authority of law, the Supreme Court has held in a judgment. The state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession', the court said.

Adverse possession
A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, Justice Malhotra, who authored the judgment, laid down the law.

Yet, this is exactly what happened 52 years ago with Vidya Devi, a widow. The Himachal Pradesh government forcibly took over her four acres at Hamipur district to build a road in 1967. Justice Malhotra highlights how the state took advantage of Ms. Devi's illiteracy and failed to pay her a compensation for 52 years.

“The appellant [Ms. Devi] being an illiterate widow, coming from a rural background, was wholly unaware of her rights and entitlement in law, and did not file any proceedings for compensation of the land compulsorily taken over by the state,” Justice Malhotra empathised with Ms. Devi, who is 80 years old now.

Ms. Devi first learnt about her right for compensation in 2010 from her neighbours who had also lost their property to the road. Then, in her 70s, she did not lose time to march straight to the Himachal Pradesh High Court, accompanied by her daughter, to join her neighbours in their fight against the state.

But the High Court asked her to file a civil suit in the lower court. Disappointed, Ms. Devi moved the Supreme Court.

Ordering the state to pay her Rs1 crore in compensation, the Supreme Court noted that in 1967, when the government forcibly took over Ms. Devi's land, ‘right to private property was still a fundamental right' under Article 31 of the Constitution.

Property ceased to be a fundamental right with the 44th Constitution Amendment in 1978. Nevertheless, Article 300A required the state to follow due procedure and authority of law to deprive a person of his or her private property, the Supreme Court reminded the government.

Right to Property and the 44th Amendment Act:

The Indian Constitution does not recognize property right as a fundamental right. In the year 1977, with the enactment of the 44th amendment the right to acquire, hold, and dispose of property as a fundamental right. However, in another part of constitution, Article 300(A) was inserted to affirm that no person shall be deprived of his property save by authority of law. The result is that the right to property as a fundamental right is now substituted as a statutory right.

The amendment expanded the power of the state to appropriate property for social welfare purposes. In other words, the amendment bestowed upon the India socialist state a license to indulge in what Fredric Bastiat termed legal plunder. This is one of the classic examples when the law has been perverted in order to make plunder look just and sacred to many consciences.

The right to property under the Indian constitution tried to approach the question of how to handle property and pressure relating to it by trying to balance the right to property with the right to compensation for its acquisition through an absolute fundamental right to property and then balancing the same with reasonable restrictions and adding a further fundamental right of compensation in case the properties are acquired by the state. This is exemplified by Article 19(1)(f) balanced by Article 19(5) and the compensation article in Article 31.

This was an interesting development influenced by the British of the idea eminent domain but overall it struck an interesting balance whereby it recognized the power of the state to acquire property, but for the first time in history of India for a thousand years or more, it recognized the individuals right to property against the state.

Property as understood in article 300A:

The obvious first question is as to whether or not intellectual property such as clinical trial data would fall within the definition of property a understood in article 300A. there seems to be enough authority to support the proposition that property as understood in Article 300A is wider than just immovable property.

One such authority in the context of intellectual property right is the judgment of Supreme Court in the case of Entertainment Network India ltd. (ENIL) v. Super Cassette Industries ltd. (SCIL).

In pertinent part the court said the following:

  • The ownership of any copyright like ownership of any other property must be considered having regard to the principles contained in Article 19(1)(g) read with Article 300A of the constitution, besides, the human rights on property.
  • It also added that right of property is no longer a fundamental right. It will be subject to the reasonable restrictions. That is in terms of 300A of the constitution, it may be subject to the conditions laid down therein, namely, it may be wholly or in part acquired in public interest and on payment of reasonable compensation.

    The fact that the supreme Court recognizes copyright to fall within Article 300A is indicative that even ‘clinical trial data', collected after extensive experimenting, should in all likelihood fall within the definition of ‘property' as understood in Article 300A.

Authority by Law as understood in Article 300A: The term law as defined in Article 300A is understood to mean only legislation or a statutory rule or order. The term law as understood by Article 300A will not include executive fiats. The source of the law depriving a person of his property has to be necessarily traced, through a statute, to the legislature.

As opposed by some of early thoughts that right to property is beneath the right to vote, freedom of speech or personal liberty, the difference between them is unreal and the dichotomy between personal and property rights is a false one.

Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation is not less than the right to speak. In fact, there is a fundamental interdependence between the personal right to liberty and the personal right in property. Property is although the most ambiguous of all the categories.

It covers multitude of rights, which have nothing in common, except that they are exercised by persons and enforced by the state. It is therefore idle to present a case for or against private property without specifying the extent or value thereof.

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